Warn or Be Warned

The Federal Trade Commission (FTC) and the U.S. Food and Drug Administration (FDA) recently sent warning letters to four firms that manufacture and market flavored e-liquid products [Letters 1, 2, 3, 4]. According to the letters, the companies used social media “influencers” (individuals who promote a company’s product on social media websites in exchange for compensation) to promote their products. Those promotional tweets and other postings on sites including Facebook, Instagram, and Twitter failed to include the requisite FDA warnings, prompting the FDA to declare the promoted products misbranded.

The FTC also weighed in, alleging that the failure to disclose the presence of and risks associated with nicotine in these endorsements raised “concerns” that the endorsement “could violate” the FTC Act, and reminding “marketers and endorsers” that its Endorsement Guides provide that if there is a material connection between an endorser and an advertiser, that connection should be clearly and conspicuously disclosed unless it already is clear from the context of the communication.

While the letters served as a mere first warning to these companies, they were clearly intended by the agencies as a signal to all marketers and promotors of tobacco products that tobacco product marketing regulations will be enforced and violators pursued. If you are marketing using social media and/or influencers and have questions or would like advice about your compliance program, please contact the Troutman Tobacco Practice.

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